Opinion
No. FBT-CV-05-4010079 S
File Date: November 17, 2006.
MEMORANDUM OF DECISION
I INTRODUCION
This case concerns the Connecticut Hazardous Waste Transfer Act, General Statutes § 22a-134 et seq. (Transfer Act). By way of background, "[w]hen there is a sale of real property that may be environmentally contaminated, the . . . Transfer Act . . . requires a transferor either to provide to a transferee a negative declaration to indicate that the property poses no environmental threat or to certify to the department of environmental protection that remediation measures will be undertaken." Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 676, 825 A.2d 210 (2003). "Failure to comply with the Transfer Act renders the transferor strictly liable to the transferee for remediation costs and other damages. See General Statutes § 22a-134b. General Statutes §§ 22a-134 through 22a-134d were enacted to protect purchasers of property from being liable for the subsequent discovery of hazardous waste on the property by requiring the transferor of property to submit a formal declaration that the property is free of pollution." (Internal quotation marks omitted.) Northeast CT Economic Alliance, Inc. v. ATG Partnership, 272 Conn. 14, 40 861 A.2d 473 (2004).
The present action arises from the transfer of certain commercial property from the defendant to the plaintiff that at the time of the transaction, and for some time prior thereto, was occupied by a printing business. The plaintiff commenced this action by writ of summons and complaint having a return date of July 26, 2005. The plaintiff filed an amended complaint on October 24, 2005 wherein she alleges that the defendant is strictly liable to her for his failure to comply with the Transfer Act. The defendant filed an answer and special defenses on November 14, 2005 denying the material allegations of the complaint and asserting three special defenses. The defendant claims in his special defenses that the plaintiff's claim under the Transfer Act is barred by the applicable statute of limitations, that a certain statutory form filed by the plaintiff was not required under the transfer provisions at issue, and that any environmental contamination on the property was caused by persons other than the defendant. The plaintiff replied to the defendant's special defenses by denying them.
The plaintiff presently moves for summary judgment on the issue of liability only. The plaintiff asserts that the defendant is strictly liable to her because he transferred the real property at issue without complying with the provisions of the Transfer Act. The plaintiff contends the real property at issue constituted an establishment under the Transfer Act.
The defendant opposes the plaintiff's summary judgment motion claiming that the property was not an establishment within the meaning of the Transfer Act and, consequently, he did not violate the transfer provisions by failing to make certain filings. Additionally, the defendant cross moves for summary judgment asserting, in contradistinction to the plaintiff, that there is no genuine issue of material fact that the property was not an establishment, and that the plaintiff's claim asserting a violation of the Transfer Act is barred by the three-year tort statute of limitations set forth in General Statutes § 52-577. The plaintiff opposes the defendant's cross-motion for summary judgment.
II FACTS
The material facts are undisputed. The real property at issue, 1383 Kings Highway, Fairfield, Connecticut, was owned by Paul Lyons from 1979 until 1987. He operated a metals business on the premises. The defendant, Sprios A. Polemis, owned the property from 1987 to November 21, 2000. The defendant operated a printing business, Helicon Press, Inc., on the property from 1988 though 1995. The defendant thereafter leased the property to another printing business, Alert Printing, from 1997 to 2000.
The defendant sold the property to the plaintiff, Janice Flynn, on November 21, 2000. Thereafter, the plaintiff sold the property on April 28, 2004, to Paul Zec. While conducting due diligence prior to the sale, Zec learned that in 1997 a representative of Alert Printing filed a form titled "Notification of Regulated Waste Activity" with the Connecticut department of environmental protection. The form was signed by Peter Karacsony under oath on February 14, 1997. In a section entitled "Regulated Waste Activity" and a corresponding subsection entitled "Hazardous Waste Activity," Karacsony checked the box for "100 to 1000 kg/mo (220-2,200 lbs)." Zec further learned that Alert Printing filed with the Environmental Protection Agency (EPA) a form entitled "Uniform Hazardous Waste Manifest," dated July 5, 2000, that indicated that the printer shipped, presumably for disposal, 500 pounds of hazardous waste in the form of photo fixer silver solution and used photographic solution. The foregoing information prompted Zec to demand, as a condition of his purchase of the property, that the plaintiff comply with the Transfer Act. The plaintiff voluntarily agreed to do so.
Zec purchased the property from the plaintiff on April 28, 2004. In accordance with her agreement, the plaintiff filed with the department of environmental protection a form entitled "Transfer of Establishment (Real Estate) Form III." The plaintiff signed the form under oath on April 28, 2004. The form was also signed by Zec as transferee. The form indicated that it was to be used "when transferring any real property that meets the definition of an establishment as defined in section 22a-134(3)" of the General Statutes. The plaintiff certified on the form that she agreed to environmentally investigate the property and to remediate any condition, if necessary.
In September 2004, the plaintiff, pursuant to General Statutes § 22a-134h, petitioned the planning and standards division of the department of environmental protection to withdraw her Form III. The plaintiff sought to withdraw the filing contending that the transfer of the property from the plaintiff to the defendant did not involve a hazardous waste establishment within the meaning of the transfer statute.
By letter dated March 4, 2005, the department issued a denial of the petition. The denial letter stated, in part, the following: "The Department has reviewed the submittal and records and concludes that Peter Karacsony manager of Alert Printing notified the Department of Environmental Protection as having hazardous waste activity (100-1000 Kg/mo.) on February 14, 1997. Such planning activity constitutes threshold rates and quantity to meet the definition of an establishment. This is underscored with 500 pounds of hazardous waste manifested from the parcel on July 5, 2000. In addition no information has been provided in the petition to describe other potential hazardous waste management activities common to the printing industry (e.g. waste developer, inks, rags, cleaning solutions) or activities by Metal Specialties who operated the parcel from 1949 until circa 1997."
At the same time the department issued its denial in March, the department's bureau of waste management issued a notice of violation to the defendant requesting that the defendant file the forms required by General Statutes § 22a-134a for the transfer of a hazardous waste establishment and to correct any violations that may exist on the property. The defendant filed a compliance statement in response thereto in which he set forth reasons why a filing was unnecessary. The department has not responded to the statement or taken any other action against the defendant.
III SUMMARY JUDGMENT LAW The law governing summary judgment and the accompanying standard of review are well settled. "Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001)."In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Rockwell v. Quintuer, 96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917 (2006).
"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citation omitted; internal quotation marks omitted.) Id., 228-29.
"An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Id., 229-30.
IV DISCUSSION OF PLAINTIFF'S SUMMARY JUDGMENT MOTION
The plaintiff moves for summary judgment asserting that that there is no genuine issues of material fact that at the time the defendant transferred the subject property to the plaintiff on November 21, 2004, the property was a hazardous waste establishment in accordance with the Transfer Act. Based on the foregoing, the plaintiff claims that pursuant to General Statutes § 22a-134b the defendant is strictly liable to her for his failure to comply with the statutory provisions.
The Transfer Act is an environmental statute which "subjects transferors of establishments to reporting, investigation and remediation requirements that depend on the environmental condition of the property being transferred. See General Statutes § 22a-134a. The transferor makes the report on one of several forms, which are defined terms under the statute as Forms I, II, III and IV. See General Statutes § 22a-134(10) through (13) (defining form contents)." (Internal quotation marks omitted.) Northeast CT Economic Alliance, Inc. v. ATG Partnership, supra, 272 Conn. 40. An "establishment" is defined, in pertinent part, as "any real property at which or any business operation from which . . . there was generated . . . more than one hundred kilograms of hazardous waste in any one month . . ." General Statutes § 22a-134(3).
Although the plaintiff has submitted numerous documents in support of her motion, the plaintiff mainly bases her argument on the Connecticut department of environmental protection's "Denial of Petition" dated March 4, 2005. Notwithstanding the plaintiff's present argument, the plaintiff petitioned the department of environmental protection, pursuant to § 22a-134h, to withdraw the Form III that she filed asserting that the property was not an establishment. The plaintiff's petition related to the Form III that she filed upon transferring the property to Paul Zec in April 2004. The plaintiff submitted in support of her petition affidavits concerning the hazardous waste generation history of Helicon Press and Alert Printing along with a copy of a report of waste generation on the property from a licensed environmental professional.
The plaintiff's petition was denied based on the department's review of the petition and records concerning the property on file. The representative expressly noted in the denial that "[t]he basis for the petition is the transaction referenced in the Form III was not an establishment at the time the form was submitted to this Department based on generation rates of photographic imaging fixer wastewaters." (Emphasis added).
The plaintiff claims that the court is bound by this agency determination such that summary judgment should be granted. Simply stated, the plaintiff claims that the agency's denial of her petition shows that there is no question of material fact that the defendant generated the necessary quantity of hazardous waste on his property as a result of the business operations of the printing businesses on his property to constitute an establishment and requiring the defendant to comply with the Transfer Act.
The agency's determination denying the plaintiff's petition to withdraw the Form III that she filed was expressly limited to deciding whether the property was an establishment at the time the plaintiff submitted the Form III. There is nothing in the letter that can be considered a determination of whether the property was an establishment on November 21, 2000, which is the date that the defendant transferred it to the plaintiff. That is the relevant date for purposes of deciding this summary judgment motion. Therefore, the plaintiff's reliance on the department's letter denying the plaintiff's position is misplaced.
In opposing summary judgment, the defendant has submitted, among other things, an affidavit of David I. Brandwein, an environmental consultant and certified professional environmental auditor. The affidavit raises issues of fact to be resolved by the trier of fact as to whether the property was an establishment within the provisions of the statutes regulating the transfer of hazardous waste establishments at the time that the plaintiff transferred the property to the defendant.
Through his affidavit, Brandwein directly challenges the plaintiff's claim that the property was an establishment. For example, Brandwein states in his affidavit that the purpose of the "Notification of Regulated Waste Activity" form filed by Alert Printing in 1997 was to apply for an EPA identification number and does not evidence the generation the required amount of waste per month necessary to constitute an establishment. Similarly, he states that the "Uniform Hazardous Waste Manifest" form filed by Alert Printing does not evidence waste generation, rather it is documentation of a specific amount of waste being shipped. Also, Brandwein, based on his review of documents, states his opinion that the property was not an establishment within the meaning of the pertinent statutes at the time the plaintiff transferred the property to the defendant in 2000.
The plaintiff has failed to sustain her burden of demonstrating the absence of any genuine issue of material fact concerning whether the property at issue constituted an establishment within the meaning of the Transfer Act. Therefore, the plaintiff's motion for summary judgment (110.00) is denied. Also, the defendant's cross motion for summary judgment (113.00) claiming that there is no genuine issue of material fact that the property at issue did not constitute an establishment within the meaning of the Transfer Act is denied. Clearly, the affidavit of Brandwein submitted by the defendant in support of his motion gives rise to issues of material fact to be resolved by the trier of fact.
V DISCUSSION OF DEFENDANT'S SUMMARY JUDGMENT MOTION RELATING TO THE STATUTE OF LIMITATIONS
The defendant further moves for summary judgment on the plaintiff's complaint, claiming that the statutory action is barred by the three-year statute of limitations pertaining to torts embodied in § 52-577. Specifically, the defendant asserts that the plaintiff had until December 2003 to bring an action, but did not commence the present action until 2005. In opposition, the plaintiff claims that because the legislature did not insert a statute of limitations into the Transfer Act, the court should not impute one.
The material facts relevant to the statute of limitations issue are not in dispute. The defendant sold the property to the plaintiff on November 21, 2000. Among other things, the Transfer Act requires that "[p]rior to transferring an establishment, the transferor shall submit to the transferee a complete Form I or Form II and, no later than ten days after the transfer, shall submit a copy of such Form I or Form II to the commissioner." General Statutes § 22a-134a(c). The defendant did not submit any such forms to the plaintiff prior to the transfer of the property, or to the commissioner thereafter.
The issue raised by the defendant's cross motion for summary judgment is whether the plaintiff's claim that the defendant is strictly liable to her pursuant to the Transfer Act is barred by the three-year tort statute of limitations in § 52-577. The court concludes that the plaintiff's action on that count is barred by that statute.
"Section 52-577 originally was enacted in 1821." Lombard v. Edward J. Peters, P.C., 79 Conn.App. 290, 297, 830 A.2d 346 (2003). The legislature has not made any changes to the statute since it revised it in 1949 to change the statutory time limitation from six years to three years. Id., 297-98. The statute provides as follows: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 52-577.
"[O]ur Supreme Court has held that the three-year statute of limitations of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections; Lambert v. Stovell, 205 Conn. 1, 4, 529 A.2d 710 (1987) . . ." (Internal quotation marks omitted.) Lombard v. Peters, supra, 79 Conn.App. 299. It is well settled that "in determining which statute of limitations applies, we look to the nature of the right alleged rather than to the form of the action or to the relief demanded." Id., 295.
In deciding the defendant's motion, the court must consider whether the plaintiff's action brought pursuant to § 22a-134b is a tort action. The gravamen of the complaint in this case is that the plaintiff seeks to hold the defendant strictly liable for damages and costs due to the defendant's failure to comply with the provisions of the Transfer Act. The court concludes that the nature of the right alleged is a violation of a statutory duty from which damages flow. "[T]he unexcused violation of a legislative enactment, or a law, is a tort." Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 602, 894 A.2d 335, cert. granted, 280 Conn. 901, 907 A.2d 88 (2006) (certification granted limited to the issue of whether "the Appellate Court properly conclude[d] that the plaintiff's claim for damages under General Statutes § 49-8 is barred by the statute of limitations, General Statutes § 52-577?").
In Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 686-87, 825 A.2d 210 (2003), the Connecticut Supreme Court applied the three-year statute of limitations contained in § 52-577 to an action brought under another section of the Environmental Protection Act, General Statutes § 22a-16. The plaintiff in Visconti brought a multi-count complaint against the defendant arising from the sale by the defendant to the plaintiff of commercial property located on Naugatuck Avenue in Milford, Connecticut. Id., 677-78. Among other causes of action, the plaintiff alleged that the defendant was liable to him pursuant to General Statutes § 22a-16, which provides that any person may bring an action for declaratory and equitable relief against a defendant "for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution . . ." Id., 686.
The defendant filed a special defense that the statutory claim was barred by § 52-577, and moved thereon for summary judgment. Id., 685-87. On appeal, the court held "that the trial court properly granted the defendants' summary judgment with respect to the plaintiff's statutory claim under § 22a-16." Id., 689. In so holding, the court noted that the "plaintiff does not dispute the applicability of [ § 52-577] in this case." Id., 687.
In addition, the case of Longobardi v. Shree Ram Corp., Superior Court, judicial district of New Haven, Docket No. CV 05 4016755 (August 15, 2006, Pittman, J.), concerns a factual situation substantially similar to the present case. In Longobardi, the plaintiffs brought an action against the defendants seeking compensation for remediation and other costs arising from a hazardous waste spill on premises they owned in North Haven. Id. The named defendant was a lessee who operated a dry cleaning business on the premises. During the time that the defendant operated the cleaning business, a toxic fluid used in the business spilled on the property. Id. The plaintiffs commenced an action claiming, among other things, reimbursement for environmental clean-up costs in accordance with General Statutes § 22a-452. Id.
The defendants moved for summary judgment asserting that the plaintiffs' statutory action for remediation costs was barred by the statute of limitations contained in § 52-577. Id. The court noted that " § 22a-452 provides for a private right of action for clean-up costs against a party who negligently contaminates property with hazardous chemicals. The statute does not contain its own limitations period. Since this is a suit brought for damage to property, the provision of [General Statutes] § 52-577 for ordinary torts or 52-577c for damages caused by hazardous chemicals applies." Id. Because on the undisputed material facts the court found that the statutory action for remediation costs was brought beyond any applicable statute of limitations, the court granted the defendants' summary judgment motion in that regard. Id.
Here, the plaintiff alleges an omission by the defendant; that being the failure of the defendant to comply with the Transfer Act at the time that he conveyed the property to her on November 21, 2000. The plaintiff seeks damages and costs relating to the defendant's alleged omission. In a letter submitted in support of her motion, the plaintiff claims damages for legal fees, filing fee for Form III, one-half of the cost of a Phase II, costs concerning the closure of a hazardous waste storage on the property, cost relating to an environmental condition assessment form, two months additional carrying costs due to the delay in closing and any costs incurred by the plaintiff for investigation and remediation of the property. The court concludes the strict liability claim in this case is in the nature of a tort and that the damages sought evince such a nature of the right alleged by the plaintiff.
In view of the foregoing, the statute of limitations set forth in § 52-577 governs an action brought pursuant to the Transfer Act. There are no issues of material fact that the property was transferred by the plaintiff to the defendant on November 21, 2000, and that the defendant failed to comply with the provisions of the Transfer Act prior, on, or subsequent to that date. The three-year statute of limitations applicable to the defendant's omission began to run on the date the defendants failed to comply with the Transfer Act, which was November 21, 2000. See Labow v. Rubin, 95 Conn.App. 454, 468-69, 897 A.2d 136 (2006) (limitations period of § 52-577 begins with date of act or omission complained of, not when plaintiff first discovers injury). In view of the foregoing, the plaintiff's action commenced in 2005 is barred by § 52-577. Therefore, the defendant's cross motion for summary judgment (113.00) is granted.
VI CONCLUSION
In view of the foregoing, the plaintiff motion for summary judgment (110.00) is denied, and the defendant's cross motion for summary judgment (113.00) is granted.